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How to create a company in Belgium

 

In the majority of the cases, one creates a legal entity because several people want to trade together or they want to distribute the risks (except in the case of the SPRLU where a person alone can create this type of company).

 

1.   Creating a legal entity must be done in a legally authorized form: SPRL, SA, limited partnership, co-operative company, etc. Your notary or your accountant will guide you in your choice according to your situation (spare capital, responsibilities which you want to take, taxation of the companies, etc.). Count that you need a capital of 18.550 € to start a SPRL, 61.500 € to start SA. There are forms which do not require a capital, but which increases the responsibility for the associates.

 

2.   The data of the company will be consigned in an act of constitution which, in the majority of the cases, is written in front of notary. This act contains:

 

- The selected form (corporate name)

- The name of the company, the registered office (company addresses)

- Assembling capital and distribution of the shares (shareholders and their actions)

- Company aims and targets (the activities which it is authorized to carry on, now or later)

- The definition of the countable year (date of beginning and completion date)

- Rules to convene a General meeting of the shareholders

- The nomination of the members of the board and their responsibilities:

In the SPRL : usually one, but maybe more "Gérant(s)"

In SA : one or more "Administrateur Délégué" in charge of the daily management or several "Administrateurs" (directors). They form together the "Board of directors"

    These persons can be selected among the shareholders although it is not a must. They also can, in certain cases, be complete outsiders. The selected corporate name can impose obligations on this level.

 

3.   Written and signed the act will be deposited at the Clerk's office of the Commercial court:

- The deposit of this act constitutes the "birth" of the legal entity. Before the deposit of the act, the legal entity does not exist, it cannot, consequently, act yet.

- The clerk's office registers it with the Register of the Moral Persons (RPM). You can compare this action with the registry of an individual with the National Register when the dad comes to declare his child with the town hall. From this moment the legal entity exists. Its bodies of management can start to work (ex: to present itself at the Counter of Enterprises)

- The clerk's office will send the act to the Belgian Monitor to make publish the statutes.

- During all the "life" of the legal entity, the clerk's office will hold a file which will comprise all the modifications with this act of constitution. Each modification made by the board of the shareholders will have also to be deposited at the clerk's office. E.g.: change of denomination, change of registered office, change of social goal, change in the nominations of the bodies of management. With each modification, the clerk's office will update these data in the Crossroads Bank of Enterprises. We will see later the role of the Counter of Enterprises.

 

4.   Since the legal entity was born, it can work. The driver of this new tool is the Management Representative which will give it the direction to be followed. The first tasks of the Management Representative (manager or administrator or managing director) will be:

- To open a banking account in the name of the company

- To pass to the Counter d'Entreprises (European "point of single contact") for:

- to prove the capacities of management

- to obtain the quality of "salesman" for the legal entity.

- to ask to register the company with the VAT

- to register the company with a "Caisse des Indépendants" to pay the contribution of the Companies there.

- To rent or buy buildings in the name of the company

- To buy material for the account and with the money of the company

- To thus exert the activity declared in the name of the company.

It's the Management Representative which acts for account of the legal entity and not for itself, nor with its own money.

 

 

The Management Representative. 

 

It is named by l'Assemblée Générale of the shareholders and one finds the name(s) of the person(s) in the statutes or the modifications of statutes. He is the representative of the legal entity and acts as such. Contrary to the shareholder, which is an investor and who does not manage the enterprise, the manager, is the organ of management which engages the responsibility of the enterprise (not his own). He will take all measurements necessary to make bear fruit the capital of the shareholder and to make thrive the enterprise, he will represent the legal entity in justice or will start judicial actions in the name of the legal entity. The Board of Shareholders can decide to name one of its members in this function or can decide to recruit an external person. According to the selected legal form for the company, the law can impose certain obligations. Since the Management Representative is the highest level of the enterprise, he does not receive orders of anybody. Thus, he is a self employed. Art. 2 & 3 of the law of July 3, 1978 on the contracts of employment for employees says: "The contract of employment as worker is a contract by which a worker, engages himself, subject to remuneration, to provide a manual work mainly manual or intellectual under the authority of an employer." The words in fat are the most important of the sentence and make the only distinction in the Belgian law between the employee who is under the direction of... and the self employed which is not. The last one has to register with a "Caisse des Indépendants" in order to pay his social contributions, even if he is not remunerated for its work (with free mandate). All the other ones who help him in the execution of the aim of the enterprise, are employees because are under his direction. An exemption from this basic rule quickly risks to end up with a statute of "false self-employed" or of "false worker". The sanctions can have heavy consequences if you exceed this rule. However "impossible is not Belgian", but it is necessary to be extremely careful.

 

The Counter of Enterprises. 

 

This typical Belgian name has been given to 9 government-approved organisations created in 2003. Since the 'Services' Directive, they are the "points of single contact" in Belgium. In French they are called "Guichet d'Entreprises", in Dutch "Ondernemingsloket".

It is not because you dreamed to open a trade that you can start today. The commercial laws oblige, as well people as companies who carry on a commercial activity, to be recorded in the Crossroads Bank for Enterprises and to prove their basic knowledge as regards management, possibly, their technical training for certain trades (construction, mechanics, restaurants,.). Since July 1, 2003 that is done with the Counter of Enterprises which confers the statute of "Commercial Enterprise". Before this date that was made with the "Chambres des Métiers et Négoces" and with the Register of Commerce. Do not confuse the "Register of Commerce" who doesn't exist anymore with the "Greffe (Clerk's office) of the Court of Commerce" where it is necessary to deposit the acts of constitution of all companies. You will turn over later to the Counter if you move your trade or if you change your activities or if you stop your activities. The counter will require of you, with each passage, the evidence of what you advance.

 


 

 


(*)

Companies

 

 

Who can present himself at the counter:

 

- The Management Representatives himself (gérant, administrateur délégué . )

- Any other person who has a signed mandate by the Management Representative (**).

 

 

Who must prove the capacities of management for the company:

:

- The Management Representative

- A mandated worker (employee with an unlimited contract, mandated to run the company).

     Attention, in the case of an sprl the gérant cannot delegate his daily management

 

 

Who must prove the technical capabilities for the regulated trades:

 

- The Management Representative

- A mandated worker (employee with an unlimited contract, mandated to run the technical division of the company).

     Iin the case of an sprl the gérant can delegate his technical management.

     Idem for the active shareholder

 

 

How to prove the capacities of management:

 

- An old « attestation d'établissement des Chambres des Métiers & Négoces » from the Management Representative. (before june 30 2003)

- A valid and recognized diploma by the Fed. Ministry of Economy. For foreigners, it has to be declared as an equivalent to a Belgian diploma by the Flemish or Walloon Ministry of Education.

- A professional experience as  manager during 3 or 5 years in the past 15 years.

- Under certain conditions : European companies who works into the EC can provide a valid EC attestation from their country of origin.

 

 

 (*) Attention, this table discribes in a rudimentary way the principles of the law. Please contact the counter FORMALIS for detailed information.

(**) A mandate is a convention by which a person is charged to pose a legal action for another person.

 

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